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N.C. State Crime Lab, Attorney General defend debunked forensic science that sent innocent men to prison

WBTV Investigates first told you this spring about Microscopic Hair Comparison, which has been discredited
Published: Nov. 22, 2021 at 5:04 PM EST
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CHARLOTTE, N.C. (WBTV) - A so-called forensic science that sent four innocent men to prison in North Carolina is being defended by North Carolina Attorney General Josh Stein and the director of the North Carolina State Crime Lab.

WBTV Investigates first told you this spring about the science called Microscopic Hair Comparison, which has been discredited, with then-FBI Director Jim Comey asking states to review old case files to ensure nobody else had been falsely convicted.

It was used widely in North Carolina from the late 1970s through the early 2000s as forensic evidence to place suspects at the scene of a crime.

The North Carolina Department of Justice put off reviewing old case files for years, despite having agreed to such a review in 2017. That changed after a WBTV investigation in late March.

Even as the State Crime Lab continues its review of more than a decade of case files, Attorney General Josh Stein and his agency are defending Microscopic Hair Comparison.

Stein himself isn’t actually saying anything. Since March, he’s refused to answer our questions, despite repeated interview attempts.

But Ochsner interviewed the director of the State Crime Lab, Vanessa Martinucci, late last month.

Read: Comey’s letter regarding microscopic hair comparison

Willie Grimes is one of the people freed from prison after decades behind bars for a rape in Hickory he didn’t commit.

Dwayne Dail is another. He spent 20 years behind bars for a rape he didn’t commit.

Both men were innocent, wrongfully convicted after a forensic evidence was used from the North Carolina State Crime Lab known as Microscopic Hair Comparison.

“Microscopic Hair Comparison was the only physical evidence that they had in my case,” Dail told WBTV.

“It’s just not credible. It’s just not,” Dail said.

In her interview with WBTV, Martinucci repeated that MHC was still a credible science, years after the FBI said otherwise.

“Hair comparison is a valid science,” Martinucci said. “It has been used in the FBI Crime lab. It’s used in crime labs across the country.

Related: Bad science sent innocent men to prison. N.C. DOJ wouldn’t review other cases where it was used.

Related: Innocent men were sent to prison and released decades later. Now Gov. Cooper won’t pardon them

Ochsner brought to Martinucci’s attention that four innocent men in North Carolina were sentenced to prison and they were convicted on Microscopic Hair Comparison evidence.

MHC was the only physical evidence in Dail’s case.

“He was convicted of a rape he did not commit, so you’re defending a science that has sent innocent men to prison. How can you do that?” Ochsner asked.

“The science itself is not the item in question,” Martinucci said. “As I said, hair comparison is a valid science.”

“It is a comparative science, so it is not used to make identifications. We use it to determine if hairs could be from this originate from the same source, and the statements that we make in the reports, and the testimony indicates the limitations of it.”

Related: State clears man wrongly convicted in 1987 rape case, a witness could face charges

Related: McCrory grants pardon of innocence in decades-old Charlotte rape case

Related: Justice Denied: man sues authorities for wrongful conviction & ‘losing’ evidence

Related: Dwayne Dail exonerated after 18 years

Ochsner: “So you stand by all the Microscopic Hair Comparison that the state crime lab has ever done?”

Martinucci: “At this moment, we are looking back through all of those cases to determine whether or not any in any case is the testimony was overstated.”

“But to this point, we have looked through thousands of cases and have not found any instances in which the limitations of the science were not expressed correctly.”

To overstate the limits of science would be for a forensic examiner to testify in court that MHC could positively identify someone.

But that’s exactly what happened in Grimes’ case in 1988 when the examiner told a jury that it is rare to see two people whose hair is the same.

And in Dail’s case, when the examiner testified that a hair recovered from the scene did, in fact, originate from Dail, DNA evidence proved otherwise..

Martinucci: “We have not found any indications that the limitations of the science were not expressed.

Ochsner: “It’s, again, not what I asked. The state crime lab has been using Microscopic Hair Comparison for decades, including in at least four cases where innocent men were sent to prison. Do you stand by that science?”

Martinucci: “I stand by microscopic hair comparison as a science. We have no reason to have to assume that there would be cases where it was previously conducted, but that’s why.”-

Ochsner: “Except for the four innocent men who went to prison on MHC evidence, you don’t think that’s evidence that the testimony was overstated?”

Martinucci: “We are looking. We don’t believe it has been done.”

Ochsner: How did Dwayne Dail go?

Martinucci: “That’s why we’re taking the time to look through it.”

Ochsner: “...to prison for rape he didn’t commit when the only physical evidence was Microscopic Hair Comparison if that testimony wasn’t overstated?”

Martinucci: “I can’t speak to his case specifically.”

Ochsner: “But you admit, you acknowledged he’s an innocent man who went to prison?”

Martinucci: “Again, I can’t speak to his case specifically.”

Ochsner also asked Martinucci why it took years for her office to begin reviewing old case files to identify cases where MHC was used as evidence.

Ochsner: “But the FBI said you should start looking at this immediately in 2015. In 2017, the Department of Justice signed the MOU with the North Carolina Center on Actual Innocence. Nothing happened on the pre-1990 case files until we did a story in March of 2021.”

“We’re talking about four to six years that the State Crime Lab didn’t start the work that the FBI said it should do, and that the state crime lab agreed to do so. Why did it take so long to start the review of the pre-1990 cases?”

Martinucci: “So in 2013 when we were notified of this issue from the FBI in the testimony, we began looking through cases. Again, only the cases that we were able to access because they were in an electronic format and we could determine in which cases her comparison was actually done.”

Ochsner: “And my question is related to pre-1990 files.”

Martinucci: “So the MOU that was signed prior to my tenure indicated that the pre-1990 cases would be addressed when we had the capability to do that. So, at this time we do have the capability and we are going back through the case files in a manual format and scanning them and uploading them so that we can determine which cases her comparison was actually conducted again.”

“We do not want anyone sitting in prison who is innocent and we are doing that review of those case files.”

Ochsner: But you still haven’t answered my question. Why did it take years and a story from WBTV before the state crime lab finally started reviewing these files?

Martinucci: “We are committed to promoting justice through science.”

Ochsner: “It’s not an answer to my question. Why did it take years and a story from WBTV before the state crime lab finally started reviewing these pre-1990 files like the Department of Justice had committed to doing in a memorandum of understanding in 2017?

Martinucci: “We have limited resources here at the laboratory.”

Ochsner: “But you didn’t ask General Assembly for more resources until this year. You didn’t even ask for the resources. You said you had limited resources and then you never went to the General Assembly and said we need money to do MHC old file review. You didn’t ask. The Department of Justice didn’t do anything, despite having committed to doing this review.”

“Why did it take so long for that to happen.”

Martinucci: “We were able to start looking through the 1990 case 1990 pre-1990 cases when we had to. Unfortunately, I have to make decisions about how to separate the limited resources that I have, and we began focusing on the pre-1990 cases pulling those case files and manually looking through them to determine in which cases hair comparison was done and then providing that information to Miss Muma so that she could do the additional research into them.”

Ochsner: “You still haven’t answered my question. I understand you have limited resources, but you never went to the General Assembly to even ask for additional resources. And by you, I mean the Department of Justice. The Department of Justice never went to the General Assembly to ask for these additional resources. Even though you signed the MOU in 2017, why did the Department of Justice wait years before starting its review of pre-1990 case files?”

Martinucci: “Again, as the director of the Crime Laboratory, I have to, unfortunately, I don’t have all the resources that I need and that’s why we asked for.”

Ochsner: “You never asked for more?”

Martinucci: “We’ve asked for 12 scientists.”

Ochsner: “But you waited four years to make that ask, why did you wait four years to make the ask?”

Martinucci: “My tenure began here a couple of years ago and we have been asking for additional scientists since the time that I’ve been here.”

Ochsner: “The General Assembly was never asked for additional resources to conduct pre 1990 microscopic hair comparison. I realize you haven’t been here all that long. But the Attorney General won’t answer our questions on camera. And you’re here answering the questions on camera today.”

“So the question remains, why did Attorney General Stein in the North Carolina Department of Justice not ask for additional resources sooner?”

Martinucci: “I can’t speak to why the Attorney General would not ask for additional, did not ask for additional resources. All I can say is that at this time we are reviewing previous case files pre 1990 and that is taking analysts away from current threats to public safety, which is why I’m asking for additional analysts to address both that project as well as the casework.”

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